Reed Smith has a short paper on its website entitled “The Dynamics of Appellate Oral Argument.” One of its authors served for fourteen years on the California Court of Appeal, so I think it is safe to say that this is some good advice. The article addresses how the advocate can argue effectively despite not being privy to the “behind the scenes” activity at the court and possibly not being able to judge the motivation of the questioner: You, of course, have entered the picture unaware of what went on behind the scenes and can only guess at what may be motivating a question. For this reason, your first task…
-
-
How Does a Court Write a Trade Secrets Opinion When It Can’t Disclose the Trade Secrets?
That was the difficult question facing the court in Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826. An excerpt from the opening paragraph of the opinion gives you an idea of the substantive issues facing the court (emphasis added): We hold that Code of Civil Procedure section 2019.210 (formerly Code of Civil Procedure section 2019, subdivision (d)), which provides that discovery relating to a trade secret may not commence until the trade secret is identified with “reasonable particularity,” is not limited in its application to a cause of action under the Uniform Trade Secrets Act (UTSA) (Civ. Code, §§ 3426-3426.11), for misappropriation of the trade secret, but…
-
Prawfsblog Looking for Worst Legal Arguments
Here’s our second contest of the day related to bad legal skills. Well, not a contest really, since there doesn’t appear to be a plan to announce a winner or award prizes. Prawfsblawg is soliciting examples of “the weakest legal argument you’ve ever heard.” Add your contribution to the comments at this post at Prawfsblawg. As of this posting, there were 56 comments already. Appellate practice offers a whole new area of bad argument: the argument that was proper at trial but has no place at all in the court of appeal even if legally correct. Using emotion-laden arguments, arguing credibility and relative weight of the evidence are some examples. I…
-
Which Bystanders to Personal Injury Can Claim Emotional Distress?
a interesting issue of tort liability is presented by Ra v. Superior Court, case no. B19766 (2d Dist. August 15, 2007). The opening paragraph of the opinion does such a good job of framing the issue that I quote it in full here: In Thing v. La Chusa (1989) 48 Cal.3d 644, 667 (Thing), the Supreme Court held only “closely related percipient witnesses” may seek damages for emotional distress caused by observing the negligently inflicted injury of a third person and specificallylimited recovery to a plaintiff who “is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to…
-
Posting Schedule
I will be out of town starting tomorrow and will not return until Monday night. I’ve set up posts in advance for tomorrow and Friday, so they obviously won’t cover breaking news. I’m not sure if I will have internet access, so I may not be able to see the latest cases or court news until my return.
-
Bad “Legalese” Can Earn an Award
Have you run across a particularly egregious case of “legalese” lately? It may win you some prizes. Go to the blog The Party of the First Part for details on submitting your entry for the newly announced “Golden Gobbledegook” award, learn where the word “gobbledegook” came from and the prizes the winner and two runners up will win. POFP offers this encouragement (besides the prizes): “Looking for inspiration? Check out the Legalese Hall of Shame at POFP’s website.”
-
Attorney Fees in Public Interest Case
I added Anthony “Tom” Caso’s “The Opening Brief” to my “Appellate Blogs” blogroll a few weeks ago. Tom is a Sacramento appellate attorney and new appellate blogger. (By the way, Tom, welcome to the blogosphere.) Today, he has an excellent post entitled “Can Fees Exceed Damages?” He discusses yesterday’s decision in Estrada v. Fedex Ground Package System, Inc., case no. B189031 (2d Dist. August 13, 2007), in which the Court of Appeal reverses an attorney fee award for plaintiff and remands for reconsideration of the amount. This was no “small potatoes” case. From the opinion: Estrada’s motion asked for $619,691 in costs and $6,789,325 for his attorneys’ fees, a total…
-
Learning How to Discard Weak Arguments
“The Risk of the Kitchen Sink Approach” is a post at Raymond Ward’s the (new) legal writer blog about the necessity of trimming weak arguments so you can do your best presenting the good ones. I highly recommend both articles linked to in Mr. Ward’s post (that recommendation goes for his blog, too). They recognize the obstacles in identifying and excising weak arguments, with specific tips on how to overcome them. One culprit, in the opinion of James McElhaney, is technology, which aggravates two other obstacles: One of the easiest ways to obscure your theory of the case is to get caught in the word processor trap. The ease of…
-
Ninth Circuit Website Kudos
Howard Bashman’s latest column at Law.com is about the need for more free internet access to federal court case information. Acknowledging that access to published and unpublished decisions is very good, he laments the general lack of access to information about cases pending rehearing en banc. The Ninth Circuit is one of two he praises. Specifically, he lauds the Ninth for providing free access at its website to a list of cases pending rehearing en banc, the issues as to which rehearing has been granted, the rehearing petitions and oppositions. Indeed, he calls it “a wonderful example of what the other federal appellate courts should be doing.” Now I feel…
-
The Reasonableness of Airport Screening: Consent, 9/11, and Terrorism
Here’s an interesting Fourth Amendment case from the Ninth Circuit today. In United States v. Aukai, case no. 04-10226 (August 10, 2007), an en banc panel of the Ninth holds that the administrative search at airport screening, including enhanced secondary screening, is reasonable with or without consent once the person attempts to access the secure area of the airport, even if he says he no longer wishes to board a plane. Aukai, after passing through the metal detector and having his personal effects screened without event as part of his entry to the secure area of the airport, was subjected to secondary screening because he had no ID. This screening…
-
The Limited Retroactivity of Cunningham
If you had been convicted of a crime and either exhausted or foregone your right of appeal, and then the United States Supreme Court decided a case that suggests your sentencing was error, you’d file a habeas petition, wouldn’t you? Of course you would. But you’d be out of luck in California if the U. S. Supreme Court case you were counting on was Cunningham v. California (2007), ____ U.S. ____ [127 S.Ct. 856], in which the Supreme Court held that upper term sentences may not be imposed based on facts found by the court rather than the jury beyond a reasonable doubt. In In re Gomez, case no. B197980…
-
The Dangers of Ghostwriting Appellate Briefs
There’s an interesting post at Adjunct Law Prof Blog linking to an ABA Journal article on the pros and cons of ghostwriting for pro per clients, including the ethical issues involved. I’ve been approached about this type of arrangement a couple of times, and it was tempting to accept, especially when my practice was new. But it just didn’t pass the “smell test” to me, so I never bothered to research the ethics of it.
-
Judgeships: Brilliant Need Not Apply?
Prawfsblawg has a post about a just-published paper, from J. Mark Ramseyer of Harvard Law School, with an interesting thesis: better to have judges that are not brilliant and creative. Prawfsblawg notes of Ramsmeyer’s paper: Taking [Jordan v.] Duff & Phelps, a contracts/corporate case from the 7th Circuit featuring a heated disagreement between Judges Posner and Easterbrook, as his text, Ramseyer writes that it “shows the risk inherent in appointing judges too creative and independent for the job.” Prawfsblawg quotes from the paper: [J]udging is not a job for unconstrained, innovative minds. Judges are government bureaucrats. Their job is to be honest, to unravel a set of facts, to decide…
-
Trends in Legal Writing
Here’s the opening of Professor Schiess’s post at legalwriting.net: I stay current on legal writing the way you stay current on your practice area. I keep up on the trends in legal writing. Yes, trends. Are you surprised legal writing changes and evolves? It does, and here are three areas that are changing right now. Check it out.
-
Ninth Circuit: No Appeal from Order Denying Issuance of Notice of FLSA Collective Action
The collateral order exception to the final judgment rule allows a circuit court to exercise its jurisdiction, even in the absence of an appealable final judgment, if the order appealed from meets certain prerequisites. Providing a good lesson in the Ninth Circuit’s application of the exception is today’s opinion in McElmurry v. U.S. Bank Nat’l Assoc., case no. 05-36407 (August 8, 2007), in which the plaintiffs, seeking unpaid overtime pay, appealed from an order denying their motion to issue notice of a collective action under the FLSA. The Ninth Circuit explains the prerequisites for application of the exception (citations omitted): Jurisdiction exists in only a “small class” of cases that…
- Appellate Procedure, California Procedure, California Supreme Court, Federal Courts, Federal Procedure, Ninth Circuit, Standard of Review
Adult Bookstore Case Results in Certified Question to State Supreme Court
Under rule 8.548(a), California Rules of Court, a Federal Court of Appeals, the U.S. Supreme Court, or the court of last resort of another state may ask the California Supreme Court to answer a question of California law where “(1) The decision could determine the outcome of a matter pending in the requesting court; and (2) There is no controlling precedent.” Most lawyers are already familiar with this procedure, at least in principle. What gives a special appellate twist to Fantasyland Video v. County of San Diego, case no. 05-56026 (August 7, 2007) is that the Ninth Circuit asks the California Supreme Court to specify the standard of review to…
-
Court of Appeal Adopts Abuse of Discreton Standard for Review of Family Code Section 2107 Sanctions Award
In Marriage of Feldman, case no. D047896 (4th Dist. July 20, 2007, certified for publication August 7, 2007), the Court of Appeal upholds a whopping $250,000 in sanctions and $140,000 in attorney fees against a husband who failed to disclose material assets in the course of divorce proceedings. The sanctions were awarded pursuant to Family Code section 2107, subdivision (c) and Family Code section 271, subdivision (a). Section 271 sanction orders are reviewed for abuse of discretion, but the court had no precedent for the standard of review to apply to awards under Section 2107, subdivision (c). The court determines that abuse of discretion applies here as well, since “the…
-
Undue Delay Precludes Coram Nobis Relief Even Where No Prejudice Results from Delay
A petitioner for writ of coram nobis must satisfy a four-part test, one element of which is that “valid reasons exist for not attacking the conviction earlier.” Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987). In United States v. Riedl, case no. 06-10424 (August 6, 2007), the petitioner argued to the Ninth Circuit that even if the court did not accept her reasons for delay as valid, the delay could not preclude relief unless the government asserted laches, i.e., that it would suffer prejudice from a grant of the writ in light of the delay. The Ninth Circuit rejects the argument, finding that undue delay precludes relief…
-
No Substitute for Certificate of Probable Cause to Appeal from Order on Bifurcated Family Law Issue
Dissolution matters are often bifurcated. Ordinarily, a party must await final judgment before appealing. However, Family Code section 2025 provides a means of appealing an order on a bifurcated issue in the appropriate circumstance: “Notwithstanding any other provision of law, if the court has ordered an issue or issues bifurcated for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate. Certification by the court shall be in accordance with rules promulgated by the Judicial…
-
More Internet Commentary about Judges
Legal Pad (a very good blog regarding legal issues in California) brings our attention to CourthouseForum.com, a 2-year old website with a directory of more than 27,000 judges and a discussion forum for commenting on them. Before you visit the site, check out Legal Pad’s post for a preview of some of the comments. Says Legal Pad about the commenters: “And boy are they candid.” You may recall my post about an ethics complaint brought against a Florida lawyer who posted highly negative comments about a judge on a local internet forum.
-
More on U.S. v. Larson
A few days ago, I blogged about the odd reasoning behind the en banc Ninth Circuit’s purported resolution in United States v. Larson of a 3-way intra-circuit split over the applicable standard of review in Confrontation Clause cases. Here’s some other blog coverage. While my post concentrated on the intra-circuit split, Split Circuits gives you coverage of the split among the federal circuits on the same issue. California Appellate Report comments on the odd 4-4-7 split vote of the en banc panel that results in one of the 4-judge opinions being the opinion of the court. Larson is Ninth Circuit Blog’s Case o’ the Week, where the federal defenders’ blog…
-
Appellate Oral Advocacy is Conversation, not Argument
So says this article on the Sidley & Austin website: [W]hy are so many oral arguments so awful? Because too many lawyers actually argue. “Oral argument” is a misnomer. It’s not an argument; it’s a conversation. Trial tactics and oral motion practice have little in common with appellate oral advocacy, except that all involve talking. Instead, the experienced oral advocate converses with the panel, as she and the judges grapple with the difficult legal issues presented by the case that will affect the development of the law. This is a really good article that builds on the “conversation” theme by giving sound advice on how to prepare for that conversation. …
-
Storytelling in Appellate Briefs
You’ve heard it before: briefs should tell a story. But rarely, if ever, have you seen the principle so thoroughly explained as it is by Associate Professor Kenneth Chestak at Indiana University School of Law, who accompanies his article on the topic with a sample brief and (short) appellate record. Thanks to the (new) legal writer blog, where you should go for all the links. By the way, for a far more succinct (but also good) lesson in storytelling, see this short article in Nevada Lawyer by Tami Cowden of the Appealing in Nevada blog, which I originally linked to in the context of this post.
-
En Banc Ninth Circuit Resolves Intra-Circuit Split on Standard of Review in Confrontation Clause Challenges
In United States v. Larson, case no. 05-30076 (August 1, 2007), an en banc Ninth Circuit court resolves a 3-way intra-circuit split on the standard of review to apply in Confrontation Clause challenges. Citing one line of Ninth Circuit cases applying de novo review, another reviewing for abuse of discretion, and a third applying a “combination” of these two standards, the courts states that it is adopting the last of these, but its analysis seems less than clear to this reader . . .
-
Arbitration Agreement May Be Invoked by Non-Parties Sued as Alter Egos of a Party to the Agreement
A contract contains an arbitration provision. Plaintiff sues you on the contract, even though you are not a party, on the ground that you are an alter ego of the corporation that is a party to the agreement. Can you invoke the arbitration provision even though you are not a party to the contract? Yes, says the Court of Appeal in Rowe v. Exline, case no.A116463 (1st Dist. July 31, 2007). After all, reasons the court, the whole theory behind alter ego liability is that the corporation and the alter ego are one in the same. Since the corporate party is entitled to the benefit of the provision, so must…
-
BlawgWorld 2007
If you’re relatively new to legal blogs — and even if you’re not — you might want to check out BlawgWorld 2007, a collection of posts from around the legal blogosphere, and published in PDF format by Technolawyer. Robert Ambrogi, who follows legal websites at his Lawsites blog, has a detailed critique of the PDF publication here, which garnered some equally detailed responses. Blawgworld 2007 is available for download from Technolawyer here.
-
Writing in Academia vs. Writing in Practice
Following up on an earlier post about ending sentences with prepositions, Professor Wayne Scheiss posts at legalwriting.net what he thinks of some of the comments he got on the post. Here is what really caught my eye about his critique: My commenters, I suspect, are real lawyers, practicing law. This is one of those times when I’m glad I’m not a real lawyer; no judges or supervisors scrutinize my writing. I live in academia, writing what I want, how I want, when I want. I’m lucky. So when real lawyers ask me about the rule, I usually tell them that to be safe, don’t end sentences with prepositions. It’s not…
- Appellate Jurisdiction, Appellate Procedure, Criminal Procedure, Federal Courts, Ninth Circuit, Waiver of Issues
Defendant’s Waiver of Right to Appeal Does Not Deprive Ninth Circuit of Appellate Jurisdiction
Ninth Circuit Blog has a pretty good write-up on last Wednesday’s Ninth Circuit en banc decision in United States v. Castillo, case no. 05-30401 (July 25, 2007), in which the court vacates the panel opinion and holds that it has jurisdiction to hear a criminal defendant’s appeal based on a pre-plea motion where the defendant waived appeal of pre-plea issues as part of his guilty plea. Federal Rules of Criminal Procedure cannot expand or contract subject matter jurisdiction, and it cannot be waived. In my observation, the tendency to confuse jurisdiction with procedure is way too common. I recently posted, for example, about confusion between forum selection and jurisdiction in…
-
Ninth Circuit’s Annual Judicial Conference Convenes Under Cloud of More “Split the Circuit” Controversy
This article at Law.com starts: While a bill to split the nation’s largest federal appeals court lies dormant in Congress, that didn’t prevent grumbling at the opening of the 9th Circuit’s annual judicial conference over repeated efforts to divide the circuit. There are several quotes from judges on their views — and fears — about a potential circuit split, including Chief Judge Schroeder’s reaction to the L.A. Times opinion piece arguing that the Ninth Circuit has a high reversal rate because its size makes it more likely that two “extremist” judges will be assigned to any given panel. My coverage of the L.A. Times piece, with links to coverage by…
-
Updated Report on Cases Citing Blogs
Concurring Opinions has a new report on cases citing blogs. Looks to them like citations to blogs may be slowing down. The Law Blog Metrics report is about a year old, so its nice to have the update. For my detailed discussion of blogs and wikis in legal opinions, including lots of links on these topics, check this earlier post. Especially if the word “wikis” in the last sentence didn’t look familiar to you. Technorati Tags: law and technology, legal wikis, legal writing